Opinion
MDL No. 1407
January 21, 2003
ORDER DENYING PLAINTIFFS' MOTION TO CERTIFY JUDGMENT FOR INTERLOCUTORY APPEAL
I. INTRODUCTION
Plaintiffs filed a motion pursuant to 28 U.S.C. § 1292(b) to certify for interlocutory appeal the orders denying plaintiffs' motions for remand issued by this court on October 25, 2002. Having reviewed the papers filed in support of and in opposition to this motion, the court rules as follows:
II. DISCUSSION
Section 1292(b) serves as a mechanism by which litigants can pursue an immediate appeal of a non-final order upon the consent of both the district court and the court of appeals. A district court judge may certify that an order involves a "controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation [.]" 28 U.S.C. § 1292(b).
Plaintiffs request that this court certify judgment to either the Ninth or Fifth Circuit Court of Appeals. The court clarifies that, in a multi-district litigation ("MDL"), appellate proceedings for early review of pretrial rulings lie in the court of appeals for the MDL court — in this case the Ninth Circuit. See, e.g., Utah v. American Pipe Constr. Co., 316 F. Supp. 837, 839-40 (C.D. Cal. 1970).
The court denied remand motions filed in these cases upon finding non-diverse defendants fraudulently joined. The court found "no reasonable basis for predicting that plaintiffs might establish liability" against the Louisiana pharmacies from whom plaintiffs purchased PPA-containing products. Badon v. RJR Nabisco, Inc., 224 F.3d 382, 393 (5th Cir. 2000). Specifically, the court found that these plaintiffs failed to plead the elements of redhibition, La. Civ. Code art. 2520 et seq., that their claims were de minimis, and that no cause of action in redhibition exists against pharmacies for the sale of medication.
Plaintiffs assert the controlling question of law to be whether the assertion of breach of warranty in redhibition against a non-diverse retailer constitutes fraudulent joinder in Louisiana. They point to Fifth Circuit Case law, as well as Louisiana district court decisions in other PPA cases, as demonstrating the existence of substantial grounds for a difference in opinion. See Badon v. RJR Nabisco, Inc., 236 F.3d 282, 284-87 (5th Cir. 2000) (remanding case involving redhibition claims brought against non—diverse cigarette distributors); and Pls.' Mot. at 4-5 n. 2 (citing Louisiana district court decisions granting motions to remand in PPA cases based on the inclusion of redhibition and other claims against non-diverse retailers) Plaintiffs assert that there will be a material advancement of the litigation in that remand will terminate these proceedings at the federal level.
The judges granted the motions to remand before the cases could be transferred to this court as a part of the PPA MDL. Judges in the vast majority of PPA cases filed in Louisiana declined to issue any rulings pending transfer to this court. See Defs.' Opp'n at 5 n. 1.
However, the court does not believe grounds exist to certify these orders for interlocutory appeal. There must be "`exceptional circumstances [to] justify departure from the basic policy of postponing appellate review until after the entry of final judgment.'" In re Cement Antitrust Litig., 673 F.2d 1020, 1026 (9th Cir. 1982) (quoting Coopers Lybrand v. Livesay, 437 U.S. 463, 475 (1978)). "While congress did not specifically define what it meant by `controlling,' the legislative history of 1292(b) indicates that this section was to be used only in exceptional situations in which allowing an interlocutory appeal would avoid protracted and expensive litigation." Id. As such, it must be shown that "resolution of the issue on appeal could materially affect the outcome of litigation in the district court." Id.
See also Caterpillar Inc. v. James David Lewis, 519 U.S. 61, 74 (1996) ("Routine resort to 1292(b) requests would hardly comport with Congress' design to reserve interlocutory review for "exceptional' cases while generally retaining for the federal courts a firm final judgment rule.")
In denying the motions to remand, this court relied on Louisiana state and federal case law interpreting the redhibition statute and the issue of fraudulent joinder. The court distin— guished the Fifth Circuit case plaintiffs point to in rehashing their argument in support of remand: "Badon provides little guidance because it involved the distribution of cigarettes rather than medication — prescription or otherwise. The liability limitations for pharmacies selling medications never became an issue. As described above, courts sinceBadon have continued to limit the liability of pharmacies." Johnson v. Bayer Corp., et. al., No. CO1-2050R, slip op. at 8 n. 3 (W.D. Wash. Oct. 25, 2002) (citing Badon, 236 F.3d 282). The court's decisions were also fact sensitive, resting not only on a finding that redhibition claims could not lie against the pharmacies, but also on the fact that the plaintiffs failed to plead the elements of such a claim in the first place. As such, none of the case law proffered by plaintiffs justifies the exceptional remedy of interlocutory review.
See, e.g., Strickland v. Brown Morris Pharm., Inc., No. 96-815, 1996 WL 537736 at 1-2 (E.D. La. Sept. 20, 1996) (citing redhibition statute and denying remand, in a suit including claims brought against a pharmacy for the sale of a nonprescription drug, because "in Louisiana a non-manufacturer seller of a defective product may be liable for damages only if he knew or should have known of the dangerous characteristic of the product" and because "a seller has no duty to inspect a product for inherent vices or defects prior to sale and has no duty to warn or instruct buyers on proper use."); and Badon, 236 F.3d at 286 n. 4 ("Plaintiffs appear to argue that any mere theoretical possibility of recovery under local law — no matter how remote or fanciful — suffices to preclude removal. We reject this contention. As the cited authorities reflect, there must at least be arguably a reasonable basis for predicting that state law would allow recovery in order to preclude a finding of fraudulent joinder.")
Compare Johnson, slip op. at 4 n. 1 (complaint only cited bad faith redhibition provision and plaintiff conceded she did not allege cause of action against retailer as a bad-faith seller), with Coleman v. Bayer Corp., et al., No. 02-333, slip op. at 6 (E.D. La. Apr. 3, 2002) (plaintiffs specifically alleged retailer sold product in bad faith under redhibition act). Indeed, one of the Louisiana district court judges recognized the fact sensitive nature of these decisions in finding the defendants in those cases "objectively reasonable" in seeking removal: "Removals based on the ground of fraudulent joinder are fact sensitive. Rulings by the judge presiding over the [MDL] confirm the case sensitive nature of the PPA litigation regarding the non-diverse drug stores." Duplissis v. Bayer Corp., et al., No. 02-0854, slip op. at 2-3 (E.D. La. May 16, 2002). See also Buckley v. Bayer Corp., et al., No. 02-1048, slip op. at 2-3 (E.D. La. May 16, 2002) (same); Primas v. Bayer Corp., et al., No. 02-674, slip op. at 3 (E.D. La. May 16, 2002) (same).
Moreover, while an immediate reversal would terminate the litigation of these particular cases in federal court, it would not materially affect the ongoing MDL. Rather, remand would merely create parallel state proceedings on the same subject matter while the main federal action continues." In re NASDAO Market Makers Antitrust Litig., 938 F. Supp. 232, 234-35 (S.D.N.Y. 1996) (immediate reversal on appeal would not materially advance or expedite termination of NASDAQ MDL litigation). These circumstances do not constitute the exceptional situation accounted for in Section 1292(b). See Id. ("Although Plaintiffs' inconvenience in litigating their claims in what they believe to be an inappropriate forum may be considered by the court, the institutional efficiency of the federal courts is among the primary concerns animating § 1292(b).")
Finally, plaintiffs mistakenly assert that, without remand, they will be unnecessarily burdened in litigating their cases thousands of miles from home. Plaintiffs' cases will be remanded to the transferor courts once pretrial matters are concluded, see 28 U.S.C. § 1407(a) andLexecon Inc. v. Milberg Weiss Bershad Hynes Lerach, 523 U.S. 26 (1998), and all case-specific discovery will be conducted in plaintiffs' own districts.
III. CONCLUSION
For the reasons stated above, the court does not believe that the orders denying motions to remand in these cases qualify for interlocutory appeal pursuant to 28 U.S.C. § 1292(b). As such, the court hereby DENIES plaintiffs' motion to certify judgment for interlocutory appeal.